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Decision No. 14,284

Appeal of LENORA W. LONG from action of the Board of Education of the Uniondale Union Free School District regarding a district election.

Decision No. 14,284

(December 23, 1999)

Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Uniondale Union Free School District ("respondent") in conducting a district election on May 18, 1999. The appeal must be dismissed.

Petitioner was one of two candidates running for a three-year term on respondent board. The election results were certified at respondent's special meeting on May 18, 1999. Neville Georges was declared the successful candidate, with 590 votes to petitioner's 425 votes. This appeal ensued.

Petitioner alleges a number of improprieties in the conduct of the election. Petitioner contends that the district clerk, Selma Rubin, permitted certain high school seniors to vote, although they were not duly registered; that district representatives improperly called parents and urged them to vote in favor of the budget; that Ms. Rubin and three others opened a voting machine from the back while voters were casting votes; that Ms. Rubin tracked the number of votes being cast for each candidate on an hourly basis; that the district failed to maintain proper poll lists, and that polls lists for the two election districts contained duplications and inaccuracies; and that the voter counts from the voting machines varied greatly from the number of voters reflected on the polling sheets. Petitioner requests that I declare her the winner of the election or set aside the election results and order a new election with an oversight committee.

Respondent denies every claim raised by petitioner. Respondent states that the high school seniors participated in an in-class mail registration program, but were not eligible or permitted to vote; that a group of student volunteers, not district staff, randomly called residents, following a script that urged voters to come out and vote but did not advocate a particular position on the vote. Respondent denies that Ms. Rubin or any other person inappropriately opened a voting machine or that Ms. Rubin tracked the hourly vote totals for the board candidates, although she concededly checked the voting machine public counters to ascertain the total number of voters during each one-hour segment. Respondent further denies the allegations regarding polling list inaccuracies, and submits that the buff cards signed by persons who actually voted and the report of canvass reflect no discrepancies between the number of voters who signed in and the number of votes cast in the election.

Respondent also raises three procedural objections. First, respondent asserts that this appeal is untimely because it was commenced by service on June 18, 1999, 31 days after the election results were certified. Second, respondent contends that service was ineffective because Ms. Rubin was served with only the notice of petition and exhibits, not the petition itself. Third, respondent alleges that the petition must be dismissed for failure to join Neville Georges, the winning candidate, as a necessary party to this proceeding.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be initiated within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Swanson, 39 Ed Dept Rep ___, Decision No. 14,247). Even if I consider petitioner's service of some of the pleadings on June 18, 1999 to be proper, these papers were not served until 31 days after the date of the election. An appeal commenced 31 days after the decision or action being appealed is subject to dismissal as untimely, unless petitioner shows good cause for the delay (Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,103). Petitioner presents no excuse or reason whatsoever for the delay in commencement of this proceeding, and the petition is thus dismissed as untimely.

The appeal must also be dismissed for failure to join Neville Georges as a necessary party. Petitioner seeks to overturn the results of the election wherein Mr. Georges was declared the winning candidate. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of DeBarardinis, 39 Ed Dept Rep ___, Decision No. 14,196; Appeal of Lawson 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Heller, 38 id. 335, Decision No. 14,048). Section 275.8(d) of the Commissioner's regulations requires that a copy of the petition be served upon the board of education and upon each person whose right to hold office is disputed. Such individual must also be joined as a respondent, and clearly named as such in the caption, to inform the person that he or she should respond to the petition and enter a defense (Appeal of DeBarardinis, supra; Appeal of Heller, supra).

Petitioner specifically seeks to overturn the election results, and Mr. Georges's rights would clearly be affected if the petition were granted. Petitioner did not name him as a respondent in the caption of the petition or in the notice of petition, nor did she personally serve him with copies of the papers. The appeal must, therefore, be dismissed for failure to join a necessary party.

In view of the foregoing disposition, I need not address the parties' remaining contentions.